September 6, 1789 – Thomas Jefferson Writes to James Madison that Every Constitution Should Expire Naturally After 19 Years

Jefferson, writing from Paris to Madison, averred that “no society can make a perpetual constitution, or even a perpetual law. The earth belongs always to the living generation.” He therefore argued (based on the lifespans of the time) that

Every constitution then, & every law, naturally expires at the end of 19 years. If it be enforced longer, it is an act of force, & not of right.”

Thomas Jefferson as a young man

What about if subsequent generations had the power of repeal? Jefferson contended this was not workable because of the following factors:

The people cannot assemble themselves. Their representation is unequal & vicious. Various checks are opposed to every legislative proposition. Factions get possession of the public councils. Bribery corrupts them. Personal interests lead them astray from the general interests of their constituents: and other impediments arise so as to prove to every practical man that a law of limited duration is much more manageable than one which needs a repeal.”

Therefore, he concluded, the earth should belong to the living, and not to the dead.

You can read his entire letter here.

August 30, 1966 – Constance Baker Motley Confirmed as U.S. District Judge Becoming 1st African American Woman on Federal Bench

Constance Baker was born on September 14, 1921 in New Haven, Connecticut to parents who had immigrated from the Caribbean Island of Nevis. Constance’s mother was a community activist who founded the New Haven NAACP. Constance herself reported she became interested in Black history at age 15 after reading James Weldon Johnson and W.E.B. DuBois.

She graduated with honors from high school and aspired to become a lawyer but could not afford to attend college. She became involved in community activism however and through that work met a local businessman and philanthropist who offered to pay for her education.

Constance Baker Motley

Thus she started college at Fisk University, a historically black college in Nashville, Tennessee, but later returned north to attend New York University. At NYU, she obtained her Bachelor of Arts degree in 1943 and her Bachelor of Laws in 1946 from Columbia Law School.

In October 1945, during her second year at Columbia Law School, future United States Supreme Court Associate Justice Thurgood Marshall hired her as a law clerk. She was assigned to work on court martial cases that were filed after World War II.

In 1946, Baker married Joel Motley, Jr., to whom she remained married until her death of congestive heart failure on September 28, 2005, fourteen days after her 84th birthday.

That same year Baker was hired by the NAACP Legal Defense and Educational Fund (LDF) as a civil rights lawyer. As the fund’s first female attorney, she became Associate Counsel to the LDF, making her a lead trial attorney in a number of early and significant civil rights cases including representing Martin Luther King Jr., the Freedom Riders, and the Birmingham Children Marchers. She visited Rev. Martin Luther King Jr. while he sat in jail, as well as spent a night with civil rights activist Medgar Evers under armed guard.

Constance Baker Motley first met Martin Luther King, Jr., in July 1962, after successfully arguing that protesters had the right to demonstrate in Albany, Georgia. Lawyer William Kuntsler is at right. Credit: Library of Congress, Prints and Photographs Division

In 1950, she wrote the original complaint in the case of Brown v. Board of Education. The first African-American woman ever to argue a case before the U.S. Supreme Court, in Meredith v. Fair she won James Meredith’s effort to be the first black student to attend the University of Mississippi in 1962. Motley was successful in nine of the ten cases she argued before the Supreme Court. The tenth decision, regarding jury composition, was eventually overturned in her favor.

As a front-line lawyer for the NAACP Legal Defense and Educational Fund, Motley personally led the litigation that integrated the Universities of Georgia, Alabama, and Mississippi among others — winning against Southern governors who literally barred the door to African American students. She opened up schools and parks to African Americans, and successfully championed the rights of minorities to protest peacefully.

Constance Baker Motley with James Meredith and lawyer Jack Greenberg after a 1962 appellate court hearing in New Orleans. Credit: Library of Congress, Prints and Photographs Division

The threat of violence was constant during Motley’s trips to the South, just as had happened when Thurgood Marshall traveled South to defend Black plaintiffs. As the US Courts site reports, Motley was barred from hotels, and stayed with local rights activists. Even when armed men stood watch, she found it difficult to sleep. One frequent host, Mississippi civil rights leader Medgar Evers, was fatally shot in his driveway. The assassin hid behind a large hedge that Motley had urged Evers to cut down.
 
Motley left the NAACP in 1965. She entered New York elected politics, becoming the first African American woman in the state Senate, and the first woman elected Manhattan Borough president. She devoted much of her time to advocated for housing equality for majority-Black and Latinx low-income tenants. Motley also endorsed urban renewal projects and looked to improve the neighborhoods in New York City that needed aid.

President Johnson appointed her to the Southern District of New York in 1966. Senator James Eastland of Mississippi delayed Constance Baker Motley’s confirmation process for seven months. Senator Eastland was in opposition to Baker’s past desegregation work including Brown v. Board of Education and Meredith v. Fair. Senator Eastland used his influence as chair of the Senate Judiciary Committee to disrupt Baker’s nomination and went as far as accusing her of being a member of the Communist Party [a common accusation made of Blacks who thought the US wasn’t being fair to minorities.] Despite opposition, she was confirmed by the United States Senate on August 30, 1966, and received her commission on August 30, 1966, becoming the first African American female federal judge. She served as Chief Judge from 1982 to 1986. She assumed senior status on September 30, 1986. Her service terminated with her death.

Constance Baker Motley became the nation’s first African American woman to serve as a federal judge in 1966, when President Lyndon B. Johnson appointed her to the Southern District of New York. Credit: Library of Congress, Prints and Photographs Division

For all her achievements, as the government website United States Courts notes, Motley’s legacy has receded with time — at least outside the federal Judiciary, where she is revered by the many judges and clerks she mentored. During Black History Month, she is celebrated far less often than Thurgood Marshall, whom she served as a key lieutenant, and Martin Luther King, Jr., whom Motley represented at critical moments.

In 2001, President Bill Clinton awarded Motley the Presidential Citizens Medal. The NAACP awarded her the Spingarn Medal, the organization’s highest honor, in 2003. In 2006, Motley posthumously received the Congressional Gold Medal from Congress for all of her accomplishments during her lifetime. In 2011, She was honored posthumously with the 13th Ford Freedom Award.

August 11, 1937 – Formation of the International Longshore and Warehouse Union

On this day, August 11, 1937, the the International Longshore and Warehouse Union formed. As Professor Erik Loomis writes in his excellent online history:

The ILWU would set the pace for how a leftist union could show leadership through the rest of the 1930s and well into the Cold War era when communist-led unions were being destroyed.”

He observes:

The ILWU became perhaps the most democratic union in the American labor movement, with most decisions made at the local level. Although never a particularly large union, it did a lot of solidarity work, helping to organize many other sectors of the economy, ranging from manufacturing work to the entertainment industry. It forced rank-and-file members to do most of the organizing, with the international only coming in later, which was quite opposite to the top-down professional organizing model quickly adopted by most unions.”

Today, as Wikipedia notes, the ILWU primarily represents dock workers on the West Coast of the United States, Hawaii, and in British Columbia, Canada. It also represents hotel workers in Hawaii, cannery workers in Alaska, warehouse workers throughout the West and bookstore workers in Portland, Oregon. In all, it represents some 42,000 members in over 60 local unions.

This newspaper briefly served as the official communications organ for West Coast longshoremen.

July 21, 1656 – Elizabeth Key Becomes 1st Woman in America of African Descent to Win a Suit for Freedom

Elizabeth Key was born in 1630 in Warwick County, Virginia. Her mother was an enslaved African woman and her father was Thomas Key, an English planter and a member of the Virginia House of Burgesses, representing Warwick County (today’s Newport News).

Elizabeth Key Grinstead was one of the first Black people of the Thirteen Colonies to sue for freedom from slavery and win. Key based her suit on the fact that her father was an Englishman who had acknowledged her and arranged her baptism as a Christian in the American branch of the Church of England. He was a wealthy planter who had tried to protect her by establishing a guardianship for her when she was young, before his death. Based on these factors, her attorney and common-law husband, William Grinstead, argued successfully that she should be freed. The lawsuit was one of the earliest “freedom suits” by an African-descended person in the English colonies.

Key won her freedom on three counts: the most important was that, by English common law, the status of the father determined the status of the child. Her father was a free Englishman, and she was a practicing Christian. The Assembly may also have been influenced by the reputation of Elizabeth’s planter father Thomas Key and wanted to carry out his wishes after he had acknowledged his daughter. In addition, the father of her mixed-race child (who was three-quarters white) was himself an English subject.

Unfortunately there was backlash that would affect the whole course of slavery. In response to Key’s suit and other challenges, the Virginia House of Burgesses passed a law in 1662 changing the social status of children born in the colony.

They thus turned English law upside down by reaching back to an archaic Roman rule, partus sequitur ventrem (you are what your mother was). That is, Virginia passed laws establishing that the legal status of the mother, not the father, as stipulated in Britain, determined the legal status of the child. This change from British law ensured that white masters could retain the value of “increase” when these female slaves gave birth, because as long as the child’s mother was a slave, it wouldn’t matter who the father was. Masters could therefore continue to exploit the popular option of using female slaves for sex without having to worry that this would cause them to lose their “property.” [Other states, particularly in the South, quickly followed suit. Further laws were passed to ensure that even “one drop” of “black blood” made the difference between slavery and freedom. You can read more about the history of the “one drop rule” (and its uniqueness to the U.S.) here.]

An analysis of Elizabeth’s case can be accessed in Banks, Taunya Lovell, “Dangerous Woman: Elizabeth Key’s Freedom Suit – Subjecthood and Racialized Identity in Seventheenth Century Colonial Virginia” (2008), online here.

July 16, 1849 – Birth of Clara Foltz – First Female Lawyer on the West Coast and Pioneer of Public Defender Practice

Clara Shortridge Foltz was born in Indiana on this day in history. In December 1864 at the age of 15, she eloped with Jeremiah Foltz, a Civil War veteran. They eventually had five children, but Jeremiah had trouble supporting them, and after around 12 years, he abandoned Clara and her five children.

She began studying law in the mid-1870s at her father’s law office in San Jose, California. The California Bar Journal notes she had to sue for entrance into what was then California’s only law school, Hastings College of Law in San Francisco.

She also supported herself by giving public lectures, starting in 1877, on suffrage. After much lobbying, according to the ABA Journal, she persuaded the California legislature to pass her “Woman Lawyer’s Bill,” which opened the profession to women in 1878. On September 5, 1878, she was admitted as the first female lawyer on the Pacific Coast, and began practicing.

She practiced law in San Jose, San Francisco, Los Angeles, Denver and New York, and, at one point, founded and edited a daily newspaper in San Diego. She continued to push for women’s suffrage.

Stanford law professor Barbara Babcock, in a biography of Foltz, Woman Lawyer: The Trials of Clara Foltz (Stanford University Press 2011), reported on the links between the suffrage movement and other struggles for civil rights and legal reform. A review of her book in the aforecited California Bar Journal describes obstacles Foltz and her fellow suffragists faced in their efforts to achieve equality in the vote; in equal access to education and employment; and in the right to serve on juries in California. Opponents argued, Babcock reports, that women voters would simply vote for the best-looking candidate and that women lawyers would seduce male juries into acquitting the guilty. They even warned that such activities would change women by “unsexing” them.

Foltz also became the first woman to serve as a legislative counsel, to prosecute a murder case, to hold statewide office (the State Normal School Board), to become a notary public and to serve as a deputy district attorney.

Clara Shortridge Foltz, via Wikipedia

Babcock avers that Foltz’s early experiences representing indigent clients and witnessing shysters, incompetent defense lawyers and prosecutorial misconduct led her to come up with the idea of a public defender to balance the public prosecutor.

In 1893, she presented her concept at the Congress of Jurisprudence and Law Reform at the Chicago World’s Fair as a California bar representative. She later drafted a model statute and campaigned for its introduction in numerous state legislatures. The first public defender office opened in Los Angeles in 1913 and the “Foltz Defender Bill” was adopted in 1921 in California.

Foltz died at the age of 85 of heart failure at her home in Los Angeles on September 2, 1934. At the insistence of its women students, Hastings College of the Law granted Foltz a posthumous degree of Doctor of Laws in 1991. In 2002, the Criminal Courts Building in downtown Los Angeles was renamed the Clara Shortridge Foltz Criminal Justice Center.

June 25, 1984 – Supreme Court Decides Chevron v. Natural Resources Defense Council Establishing Principle of “Chevron Deference” for Administrative Actions

“The Chevron Deference” is a term derived from the landmark case decided on this day in history, Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). In that case, the Supreme Court, in a majority opinion written by Justice John Paul Stevens, found that:

With regard to judicial review of an agency’s construction of the statute which it administers, if Congress has not directly spoken to the precise question at issue, the question for the court is whether the agency’s answer is based on a permissible construction of the statute.”

Kevin W. Saunders, writing for the Arizona Law Review in 1988, noted that “When the administration of a statute is entrusted to an administrative agency, the agency is naturally faced with questions as to what the statutory terms mean.” (“Agency Interpretations and Judicial Review: A Search for Limitations on the Controlling Effect Given Agency Statutory Constructions,” online here.)

In Chevron, Saunders pointed out, the Court did not grant the agency view mere deference, but instead granted controlling weight, even without finding an explicit delegation to the agency of the authority to construe the statute. If the delegation was implicit rather than explicit, Justice Stevens wrote, “a court may not substitute its own construction of a statutory provision for a reasonable interpretation made by the administrator of an agency. (footnote omitted)”

Justice John Paul Stevens

In 1990, Cass R. Sunstein argued in the Columbia Law Review in “Law and Administration after Chevron” (online here) that the Chevron principle is “quite jarring to those who recall the suggestion, found in Marbury v. Madison and repeated time and again in American public law, that it is for judges, and no one else, to ‘say what the law is.’” But, he adds, “it is also strikingly reminiscent of the New Deal enthusiasm for agency autonomy and the New Deal belief in a sharp disjunction between the realm of law and the realm of administration.”

What Chevron did, Sunstein asserted, was to alter the distribution of national powers among courts, Congress, and administrative agencies.

As a discussion of the Chevron Deference on the Cornell law website points out, however, in subsequent Supreme Court cases, the scope of the deference has been narrowed:

. . . only the agency interpretations reached through formal proceedings with the force of law, such as adjudications, or notice-and-comment rulemaking, qualify for Chevron deference, while those contained in opinion letters, policy statements, agency manuals, or other formats that do not carry the force of law are not warranted a Chevron deference.  In such cases, the Court may give a slightly less deferential treatment to the agency’s interpretation, giving a persuasive value under the Court’s ‘Skidmore deference’ analysis.” 

The “Skidmore Deference,” as the website Ballotpedia explains, was developed in the opinion for the 2000 U.S. Supreme Court case Christensen v. Harris County (529 U.S. 576) and named for the 1944 U.S. Supreme Court decision in Skidmore v. Swift & Co. (323 U.S. 134).

Unlike Chevron deference, which requires a federal court to defer to an agency’s interpretation of an ambiguous statute if the interpretation is considered reasonable, Skidmore deference allows a federal court to determine the appropriate level of deference for each case based on the agency’s ability to support its position.

Controversy over the Chevron Deference can be seen in recent cases before the court involving Medicare. (They include Becerra v. Empire Health Foundation and American Hospital Association (AHA) v. Becerra.) As reported in Penn’s “Regulatory Review,” during oral arguments over one of the cases held in January, 2022, “the complexity of the Medicare system led U.S. Supreme Court Justice Stephen Breyer, who used to teach courses on regulation at Harvard Law School, to acknowledge that ‘the chances I understand it correctly are near zero.’” Justice Neil Gorsuch, on the other hand, said that Chevron allows agencies to supplant courts, which are supposed to interpret the laws. Critics also argue that Chevron encourages Congress to grant agencies broad discretionary authority that should remain with lawmakers.

Update: James Romoser, Editor of ScotusBlog, reported of the newly decided American Hospital Association v. Becerra:

In a narrow and unanimous opinion [written by Justice Brett Kavanaugh] on [June 15, 2022], the court did not overturn the Chevron doctrine. Instead, it just ignored it. And in doing so, the court may have portended the future of Chevron, which already has been narrowed considerably over the years. Rather than a single, decisive blow or a continued death by a thousand cuts, the court might simply snuff out Chevron with the silent treatment.”

ScotusBlog continues:

Notably, the opinion does not contain even a single citation to Chevron v. Natural Resources Defense Council, even though hundreds of pages of briefing and a large chunk of the oral argument focused on the continued vitality of the landmark 1984 case and the doctrine it created.”

May 21, 1901 – Connecticut Passes 1st Automobile Speeding Law in U.S

A Connecticut history site tells us that colonial Boston and New York had speed limits on riding horses through the city streets, but on this day in history, Connecticut became the first state to pass An Act Regulating the Speed of Motor Vehicles.

According to the new law, cars were not to exceed 12 miles per hour within city limits and 15 miles per hour on rural or suburban roads, and were required to slow down whenever they approached an intersection.

1901 Kidder Steam Wagon, New Haven, CT, via earlyamericanautomobiles.com

The site notes that the law governing speed proved difficult to enforce, since there were no accurate speed-measuring devices in 1901. But the maximum penalty for breaking the law apparently served as a sufficient deterrent. Violators could be fined up to $200 — which translates to nearly $6,000 in today’s dollars.

You can read the text of the law here.

April 12, 1900 – Foraker Act Establishes Civilian Government on Island of Puerto Rico

The Foraker Act, Pub.L. 56–191, 31 Stat. 77, replaced the governing military regime in Puerto Rico with a limited form of civil governance. Puerto Rico had recently become a possession of the United States as a result of the Spanish–American War. The legislation was known as the “Foraker Act” after its sponsor, Ohio Senator Joseph B. Foraker, although its main author has been identified as Secretary of War Elihu Root.

The new government had a governor and an 11-member executive council appointed by the President of the United States, a House of Representatives with 35 elected members, a judicial system with a Supreme Court (also appointed) and a United States District Court, and a non-voting Resident Commissioner in Congress. In addition, all federal laws of the United States were to be in effect on the island.

In this 1898 cartoon, Uncle Sam offers a suit of “stars and stripes” to a young Puerto Rican. The question of Puerto Rico’s assimilation and status remained a constant source of political friction on the island and in Congress. Image via Library of Congress

As the Pulitzer-Prize winning dramatist Quiara Alegría Hudes pointed out in her memoir, “My Broken Language”:

Language differences threatened then new colonizers’ ability to rule. Four hundred years of Puerto Rican literature, history, laws, and business records were in Spanish, but neither the U.S. government nor American sugar corporations hungry to buy up land spoke it. A few years into the acquisition, the Foraker Act foisted English, virtually unknown on the island, onto every level of the culture. Overnight, government departments were mandated to use English coequally with Spanish. . . . School days now began with the United States pledge of allegiance and national anthem. Students learned both phonetically, oblivious to their meaning. Teachers and students were forbidden to speak Spanish in schools. . . . English enforcement (for the ease of stateside governors and sugar corporations) was justified as moral imperative. New leaders touted their will to bestow the blessings of enlightened civilization on the island’s masses. English was not simply a language, but a betterment project.”

The Foraker Act was superseded in 1917 by the Jones–Shafroth Act (Pub.L. 64–368, 39 Stat. 951, enacted March 2, 1917) This act superseded the Foraker Act and granted U.S. citizenship to anyone born in Puerto Rico on or after April 11, 1899. It also created the Senate of Puerto Rico, established a bill of rights, and authorized the election of a Resident Commissioner (previously appointed by the President) to a four-year term. The act also exempted Puerto Rican bonds from federal, state, and local taxes regardless of where the bondholder resides.

In 1991 the government of Puerto Rico, under the administration of the Popular Democratic Party’s Rafael Hernández Colón, made Spanish its sole official language through a law commonly called the “Spanish-only Law.” On January 4, 1993, the 12th Legislative Assembly, with the support of the newly elected New Progressive Party (PNP) government of Pedro Rosselló González passed Senate Bill 1, establishing both Spanish and English as official languages of the government of Puerto Rico.

2019 cartoon on America’s continued colonization of Puerto Rico

As James Baldwin wrote for the New York Times in 1979 on the uses of language as a political tool:

Language, incontestably, reveals the speaker. Language, also, far more dubiously, is meant to define the other. . . . People evolve a language in order to describe and thus control their circumstances, or in order not to be submerged by a reality that they cannot articulate. (And, if they cannot articulate it, they are submerged.)”

March 31, 1981 – First Patent Issued for Genetically Engineered Life Form; Upheld by SCOTUS

Ananda Mohan Chakrabarty was born in India in 1938 and moved to the U.S. with his wife after completing his Ph.D. in biochemistry. (His wife also had a Ph.D. in biochemistry.) Initially the couple worked at the University of Illinois Urbana-Champaign (UIC), and it was there that Chakrabarty developed an interest in the bacteria pseudomonas. After six years, the couple moved to upstate New York where Chakrabarty took a job at General Electric.

During the course of Dr. Chakrabarty’s research at GE, he and an associate genetically engineered a new, stable type of pseudomonas capable of breaking down crude oil. Dr. Chakrabarty sought a patent on this process pursuant to Title 35 U.S.C. Section 101, which provided patents for people who invented or discovered “any” new and useful “manufacture” or “composition of matter.”

The request was rejected by a patent examiner and affirmed by the Patent Office Board of Appeals, stating that living things were not patentable under Section 101. This decision was reversed by the Court of Customs and Patent Appeals, which concluded that the fact that micro-organisms were alive was without legal significance for purposes of the patent law.

Sidney A. Diamond, Commissioner of Patents and Trademarks, appealed to the Supreme Court. The Supreme Court case, Diamond v. Chakrabarty, 447 U.S. 303 (1980), was argued on March 17, 1980 and decided on June 16, 1980.

The patent was granted by the USPTO on March 31, 1981, this day in history. The court held that forms of life can be patented if they are the outcome of “human ingenuity and research” and not “nature’s handiwork.”

Chief Justice Warren E. Burger, delivering the opinion of the Court in a five-to-four decision, added:

Nor does the fact that genetic technology was unforeseen when Congress enacted § 101 require the conclusion that micro-organisms cannot qualify as patentable subject matter until Congress expressly authorizes such protection. The unambiguous language of § 101 fairly embraces respondent’s invention. Arguments against patentability under § 101, based on potential hazards that may be generated by genetic research, should be addressed to the Congress and the Executive, not to the Judiciary.”

The ruling was of immense importance for the growth of biotechnology companies, clearing the way for patents to be issued also on genetically-engineered mice and other animals.

Ananda Mohan Chakrabarty in 2009

Upon his death on July 10, 2020, the UIC posted an obituary noting:

Chakrabarty’s fame as the name on the first patent for a recombinant microbe led to a second career as an expert and lecturer on legal issues of patenting and intellectual property rights of biological significance. He sat on many American and international committees and taught in workshops for American and international judges on these matters. For his achievements in genetic engineering technology, he was awarded the prestigious civilian Padma Shri by the government of India in 2007.”

March 21, 1804 – Napoleonic Code, or “the Civil Code of the French” Established

The Napoleonic Code, officially called the Civil Code of the French, was established in 1804 and is still in force, although it has been frequently amended.

The Ancien Régime was the political and social system of the Kingdom of France beginning in the Late Middle Ages. It lasted until the French Revolution of 1789, which led to the abolition of hereditary monarchy and of the feudal system of the French nobility.

The Napoleon Series website, dedicated to the promotion of scholarly exploration of the Napoleonic Age, points out:

Under the ancien regime more than 400 codes of laws were in place in various parts of France, with common law predominating in the north and Roman law in the south. The Revolution overturned many of these laws. In addition, the revolutionary governments had enacted more than 14,000 pieces of legislation. Five attempts were made to codify the new laws of France . . . “

Napoleon succeeded in forming an expert commission to draft a new civil code to consolidate all the laws in place and devise new ones when needed.

The commission drawing up the code consisted of two jurists specializing in common/customary oral law, and two jurists specializing in written law. The resulting body of law comprised 36 laws and 2,281 articles, arranged in 3 parts dedicated to persons, property, and means of acquiring property.

As for Napoleon’s own contributions to the code, an article by Charles Sumner Lobingier from the December 1918 Harvard Law Review is illuminating, and can be accessed online here.

As the Daily History site notes:

The Code played a significant role mainly in the formation of the 19th century civil codes in most countries of continental Europe and Latin America. Today many European legal systems are established upon its basis and strong influence. The Civil Code has turned into a truly modern instrument successfully applied for over 200 years despite the vast social transformations in the French society.”

Later Napoleon also promulgated four other codes: the Code of Civil Procedure (1807), the Commercial Code (1808), the Code of Criminal Procedure (1811), and the Penal Code (1811).

You can see a copy of the French Civil Code online in either English or French here.